Adults with Incapacity (Scotland) Bill: Stage 1
We move to the next item of business, a debate on motion S1M-213, in the name of Mr Jim Wallace, which seeks the Parliament's agreement to the general principles of the Adults with Incapacity (Scotland) Bill.
Before we begin, I remind members that the debate will be held in two sections—from now until we adjourn for lunch and for a further one hour and 45 minutes after open question time this afternoon. I intend to bring the first section of the debate to a close just before 12.30 pm. It is therefore likely that only the Executive and main party spokespeople will be given the opportunity to speak in the first section of the debate. Other members will be called to speak when the debate resumes this afternoon.
I am pleased to move this motion to approve the general principles of the Adults with Incapacity (Scotland) Bill. The bill is a major piece of law reform. It has been particularly close to my heart since those campaigning for its introduction approached me more than 18 months ago. It says something about what this Parliament can do that we are able to legislate on such an important area. Those of us who tried to get this legislation through at Westminster were often knocked back and frustrated. The legislation is likely to affect every family in Scotland at some time. The chance we now have to get the legislation on the statute book is an indicator of the real good that the Scottish Parliament can do.
The purpose of the bill is to improve the law for adults who lack the capacity to make decisions about their finances and welfare. Adults with incapacity include some people who have dementia or severe learning disabilities or who have suffered strokes or a brain injury. It is estimated that 100,000 people in Scotland are affected by incapacity at any time. Their families and those who look after them are also affected. The bill is part of the wider framework of Scottish ministers' commitment to social justice in which every one of those people matters. The bill will improve their rights and protection and will make the task of caring more straightforward. It will make a real improvement to the quality of life of Scottish people.
The process in which we are involved is a shared journey. A great many people helped to identify the need for reform and have helped us to
arrive at the proposals in the bill. I understand that campaigning to update the law started as early as 1984. It was prompted by the antiquated and unsatisfactory nature of existing arrangements and the increasing number of people affected by Alzheimer's disease and other forms of dementia. It was also prompted by changing attitudes in society, greater awareness of the rights of those with incapacity and moves away from institutional care to care in the community. I acknowledge the hard work and foresight of those who were involved in the early days of putting forward proposals for reform.
The Scottish Law Commission embarked on a major project when it published a discussion paper on the subject in 1991. The paper was debated across Scotland with a variety of interests, including statutory and voluntary bodies and, most important, those involved directly in caring for family or friends.
The Scottish Law Commission's report on incapable adults was published in 1995 and included a draft bill. I salute the commission for its breadth of thinking and the care that it took in developing this new framework of law. The commission is the architect of the bill that we are now considering.
The shared journey continued when the Scottish Office consulted on the issues in 1997. More than 160 responses were received, but the consultation and listening did not stop then. We have been assisted by groups such as the alliance for the promotion of the bill, by experts in mental health and social work and by many others, including carers. There has been a helpful debate on how to achieve the best outcome for this most vulnerable group of citizens. The process has given us confidence that there is widespread support for the bill.
The long consultative journey has embodied the Parliament's aims in developing legislation. However, I am aware of the limited time that the committees have had to consider the bill, and I am particularly grateful to the members of the Justice and Home Affairs Committee for their careful scrutiny, assisted by the Health and Community Care Committee and the Subordinate Legislation Committee.
I am also grateful for the Justice and Home Affairs Committee's thoughtful and constructive report to the Parliament. We have made a written response, which is available to all members, and I shall respond to some of the committee's other points today.
We are planning to bring forward some technical amendments at stage 2 to improve the bill further. They will include provisions for private international law, which governs how the law of
Scotland in this area interacts with that of other countries. I shall have more to say shortly about more substantive amendments.
The bill is based on strong and overarching general principles. I want to emphasise that incapacity is not an all or nothing condition, and there will be no labelling based on preconceived notions of what a person can or cannot do, nor will anyone be considered incapable just because they have a learning disability or a mental illness. Doctors will make most formal assessments of incapacity, but we expect them to get advice from others who know the adult and who are aware of the nature of the decisions to be made on the adult's behalf.
The bill requires everyone involved in the decision-making process to use appropriate means to communicate with the adult and to find out for themselves what the adult wants. There are other important general principles—whatever is done should be for the direct benefit of the adult. The least intrusive measure must always be chosen to achieve that benefit, and those close to the adult will have a right to be informed and consulted.
The Executive has listened to the concerns that have been raised about the bill's definition of the nearest relative who will be one of the people involved in decision making.
Part of the problem that I have with the bill is the inclusion of people in discussions of how to decide to give power of attorney, for example. What does the minister foresee as the legislative programme that will enable all the relatives organisations, as well as the family, to come together? That aspect of the legislation is complex, and we want to get it perfect.
Individual cases—it is important to stress that cases are considered individually—will differ according to the individual's incapacity and the particular circumstances. Is a specific intervention required for the sale of heritable property, for example, or is something more general needed? Such decisions will, by their nature, involve a range of people. As I have indicated, there will be medical input, and legal input will be important in identifying the precise requirements for particular situations. Obviously, the views and information of those most closely connected with the adult concerned are particularly relevant. Such people will have some knowledge of the adult's wishes. A clear indication of the person's incapacity will also be relevant.
We intend to lodge an amendment to the bill to allow the adult to ask for the nearest relative to be removed from their position in exceptional circumstances. We have also listened to concerns
about excluding partners of the same sex from the definition of spouse or partner. That was reflected in the Justice and Home Affairs Committee's report. We will introduce an amendment to the effect that a same-sex partner may be included as the nearest relative for the purposes of this legislation.
On more specific provisions, the bill will expand and enhance private arrangements that an individual can make for the possibility of their future incapacity. We hope that an increasing number of citizens will take advantage of those provisions. It is already possible to appoint an attorney to look after one's property and financial affairs. The bill will make it possible to appoint a welfare attorney to make decisions about personal welfare, including medical treatment. Though powers of attorney are essentially private arrangements, there will be new safeguards against abuse. A new office of the public guardian will keep information on public registers about the powers being exercised on behalf of people who have lost capacity. The courts will be able to intervene if something is wrong and to remove an attorney's powers as a last resort.
The freezing of accounts when the account holder loses capacity has been one of the most common and distressing problems with the current arrangements. The bill will resolve those difficulties by including, at part 3, a simple and much-needed scheme for access to an adult's funds, which will provide supervised access to, for example, an adult's bank or building society account. It will allow a carer or relative to use the adult's funds to manage day-to-day household expenses.
Part 4 of the bill sets out unified arrangements for managers of care establishments to look after their residents' finances in the event of incapacity and where there are no other suitable arrangements. This provision will encompass those living in hospital and in residential and nursing homes. For the most part, managers who currently perform that service for their residents do so informally and without checks and safeguards. The scheme in the bill puts that right.
We have listened to the genuine concerns expressed to us about the possibility of conflicts of interest for managers and we agree that there should be stringent safeguards to prevent any such conflicts. The bill provides for independent monitoring of establishments and for national standards. Where residents have significant funds, other measures will generally be taken to protect their financial interests.
A significant part of the bill sets up a new, flexible and accessible system of intervention and guardianship orders, which replace the existing offices of curator bonis, tutor at law, tutor dative and guardianship as defined by mental health legislation.
Where an adult lacks the capacity to make a one-off decision, such as signing an important document, a one-off order can be sought in the sheriff court. Where longer-term arrangements are needed, a guardianship order can be made, with powers conferred over specified aspects of an adult's life. A relative or carer could apply to be guardian and, when there is no other alternative, the chief social work officer of the local authority may be appointed welfare guardian.
It will be possible for the courts to appoint a financial guardian to an adult with incapacity. Specific powers will be conferred over the adult's property and financial affairs, and the public guardian will supervise the exercise of those powers. Accounts will normally have to be kept and the public guardian can investigate any concerns.
It is fair to say that part 5 of the bill, which deals with medical treatment and research, commanded the attention of the Justice and Home Affairs Committee and of the Health and Community Care Committee, and rightly so. We recognise, as does the Parliament, that these provisions raise sensitive issues and require the closest consideration. I repeat that the Executive appreciates the careful and balanced views expressed by the Justice and Home Affairs Committee, which were based on widely differing written and oral submissions, all of which were sincere expressions of deeply held opinions.
It is useful to rehearse briefly the background to part 5. The law as it stands is not clear. There is no explicit authority for a doctor to treat a patient who is unable to consent, except in an emergency. That lack of clarity could well result in such patients not receiving treatment that could enhance their well-being and quality of life. That is manifestly unsatisfactory. Similarly, current research practice lacks the statutory underpinning needed to provide safeguards for those patients, as well as for researchers. Part 5 of the bill introduces a statutory framework that protects the interests of the patient, gives a balanced role to his or her legal representative and, at the same time, invests doctors with appropriate authority.
I now turn to some of the specific areas of difficulty. A recurrent theme has been the implication that, in some way or another, the bill opens the way to passive euthanasia. I want to make the position absolutely clear. The Scottish Executive is totally opposed to euthanasia. Any such act is a crime in Scotland and nothing in the bill is designed to alter that position.
That said, however, the Executive believes that some changes to part 5 are desirable to create a
more balanced approach to treatment decisions. We accordingly propose to lodge amendments at stage 2, which will help to allay some of the concerns that have been expressed. We propose an amendment to section 47, which will allow a doctor to seek a second medical opinion in cases in which the guardian or welfare attorney has refused consent to the medical treatment that has been proposed. If that second opinion confirms the need for the treatment in question, the doctor will be able to proceed. However, anyone with an interest in the personal welfare of the patient, including a doctor, welfare attorney, guardian or relative, will be able to appeal to the Court of Session if they are concerned about the course of action that had been proposed by a doctor, even when that action is supported by a second medical opinion.
We have listened carefully to the views that were expressed by the committee on the definition of medical treatment and, in particular, the inclusion of artificial nutrition and hydration. That particular part of the bill has caused considerable unease. We propose to amend the definition of "medical treatment" to remove reference to particular procedures and to define treatment simply as "any procedure or treatment designed to safeguard or promote physical or mental health". The positive nature of the new definition will underline the fact that the purpose of this bill is to help, not to harm, adults with incapacity.
I welcome the change to section 44 and the deletion of the reference to nutrition and hydration by artificial means as a medical treatment. However, as that deals with the concerns that people had about the powers of welfare attorneys or guardians in section 47, why has the minister gone against the wishes of the alliance for promotion of the incapable adults bill and of Alzheimer Scotland in giving primary authority on treatment decisions to medical opinion rather than to the welfare attorney or guardian?
Malcolm Chisholm is talking about situations in which there is a conflict of opinion between the doctor and the guardian on a proposed course of action. We have tried to create a balance, which no one pretends is easy to strike. We have allowed a second medical opinion, to ensure that the view of not only one doctor would prevail in such cases. We have also provided for recourse to the courts, in the event of a dispute.
A reasonable balance has been struck in a difficult area. I have no doubt, however, that we will return to these matters at stage 2, during detailed committee scrutiny, when that balance can be explored further. We have listened to the concerns that have been expressed to us, and have tried to act on them by striking a different balance from that which was proposed in the original draft of the bill. I believe that the balance that we have struck gives weight to the various concerns. However, as I said, I am sure that we will return to that issue.
There have been demands to include a statutory duty of care for welfare attorneys and guardians in this bill. The intention behind that proposal is good, but we are convinced that that statutory duty is neither necessary nor desirable. As the Scottish Law Commission said in 1995, a duty of care already exists. Section 73 of the bill refers to that duty and to the requirement for attorneys and guardians to act in good faith.
The contribution of Professor Sheila McLean, in her evidence to the Justice and Home Affairs Committee, which is reported in the appendices to the report, is well argued and sets out the position clearly. It is clear that attorneys and guardians must follow the general principles and codes of practice, and must seek professional advice when that is appropriate. Professional duties of care exist only in relation to specific services. A statutory duty in the bill for welfare attorneys and guardians would be extremely difficult to enforce. We are convinced that we should not go down that road.
The Justice and Home Affairs Committee sought clarification of our decision not to include provisions on advance statements in this bill. Our position remains that we have no plans to legislate in that controversial area, in which there is a sharp division of public opinion.
How does that sit alongside the requirement in the bill to take account of the present and past wishes of the adult? The Executive sees a clear distinction. The provision in section 1 of the bill to take the adult's wishes into account is intended to impose a responsibility to establish what the adult wants, or has previously expressed a wish for. The provision does not, however, have a bearing on the legal status afforded to an advance statement or living will that was made by an adult when they had the capacity to do so.
The provisions on research in section 48 have also attracted a good deal of comment. That is a sensitive area in which it is necessary to ensure that the interests and well-being of the adult are fully protected. We have, therefore, been careful to construct the terms of section 48 as tightly as possible. The conditions placed on such research are rightly onerous.
There have been persuasive arguments that the type of research allowed should be broadened slightly. Research is, by its very nature, more likely to be of general benefit than of benefit to an individual and there is a case for slightly greater
latitude. I propose, therefore, to bring forward at stage 2 an amendment based on the Council of Europe's Convention on Human Rights and Biomedicine, which has already been accepted by many European countries and is seen as an international standard. That will permit research in exceptional situations; research that aims to benefit, through significant improvements in the scientific understanding of an individual's condition, disease or disorder, the person concerned or other persons in the same age category who are afflicted with the same disease or who have the same condition.
Section 45 of the bill allows certain treatments to be excepted from the general authority to treat in section 44 of the bill. In finalising which treatments should be excepted, we have made it clear that we will take on board the views expressed in the Parliament and by the Millan committee. That remains our position. I want, however, to be open with members about our current thinking and, with that in mind, I will now outline the specific treatments that, subject to comments, we propose at this stage should be covered by regulations made under section 45. We recognise that electroconvulsive therapy is a controversial treatment and we intend, therefore, that ECT should be possible under this bill only where a favourable second medical opinion has been obtained. For three other treatments, we believe that Court of Session approval should be necessary. Those are psychosurgery, sterilisation and the implantation of hormones to reduce sexual drive.
Part 5 of the bill has, perhaps unsurprisingly, provoked the greatest debate. I believe that some of the changes that I have outlined today will improve the bill, and will ease the anxieties of those who have had concerns about its purpose.
Finally, I am sure that the Parliament will want to know the eagerly awaited timetable for implementing the bill. We want to press on with the bill as fast as possible; no one is under any illusion that there is not a great deal of work to be done. Nevertheless, up to half the changes could be made by April 2001. By then we hope to have set up the public guardian's office, to have introduced provisions for continuing and welfare attorneys and provisions for the access to funds scheme.
The medical treatment and research provisions could be implemented by summer 2001. We intend that arrangements for managing residents' finances will be implemented in September 2001, when we hope the new Scottish commission for the regulation of care will become operational, following the passage of a bill to establish it. Intervention orders and the new form of guardianship should be in place by April 2002.
We shall set up a national implementation steering group, which will include some of the key organisations that will be preparing themselves for implementation and that can advise the Executive on what needs to be done. We want to make sure that carers' and service users' views are effectively represented.
As the Justice and Home Affairs Committee says in its report, this bill is good. We have worked hard to ensure consensus of opinion in some difficult areas. There is agreement that reform of the law is long overdue. I look forward to the debate today, and to the rest of the shared journey towards passing this important legislation.
I move,
That the Parliament agrees to the general principles of the Adults with Incapacity (Scotland) Bill.
It is only right that, as convener of the Justice and Home Affairs Committee, I take a few minutes in the chamber to comment on the committee's experience of dealing with the bill. I hope that I will be allowed a little latitude to do that. It is fair to say that all members of the committee feel as if they have come out of a long, dark tunnel only to be faced with another long, dark tunnel at stage 2 of consideration of the bill.
I would first, and most importantly, like to express my appreciation of the work that was put in by every member of the committee in a difficult period, when the committee worked extremely hard. We have been dealing not only with this bill, but with the Abolition of Feudal Tenure etc (Scotland) Bill, which will be debated next week. The committee has also had a member's bill referred to it and has continued to progress two items of specific committee interest—prisons and domestic violence—which we began to examine in September. On top of that, the committee has dealt with a variety of petitions and items that have been referred to it by the Subordinate Legislation Committee and the European Committee.
Our work load has been colossal, so it is lucky that all members of the committee managed to retain their sense of humour and—more important—the sense that we were working as a committee, not just as a collection of more or less party political individuals.
In the past two months, when we dealt with stage 1 of this bill and the Abolition of Feudal Tenure etc (Scotland) Bill, there were times when we felt like guinea pigs. If we occasionally plaintively asked one another what a stage 1 report looked like, it can now be judged whether we got it right. That we managed to get this far is in no small measure due to the excellent work of
the committee clerk and his team; they worked flat out and we owe them a great debt. We are very lucky to have them and I hope they, too, felt part of a real team.
The approach that we adopted to the report reflects our belief that it is important to represent in it all shades of opinion in the committee. Not all opinions were held unanimously but, in my view, to refuse to record views because they were not held by all members of the committee would be to misrepresent the range of views on aspects of this and, no doubt, other bills. If we say that a view was held by the committee as a whole, it was; anything less than a unanimous view has been recorded with the appropriate qualification. On this bill, it was important that we did that, because far more of it was controversial than might have been anticipated.
We were aware of the extensive consultation undertaken by the Scottish Law Commission, which did the initial drafting. The committee took its own informal briefings during the summer recess, so that we would be better prepared to deal with the bill. We heard oral evidence from seven organisations and from one individual, Professor Sheila McLean, over three meetings. We could easily have heard a good deal more evidence from organisations and individuals. Even now, I am getting letters from organisations and individuals confidently expecting to be able to continue giving evidence at stage 2. That would have a serious impact on the timetable; we might have to discuss that. The areas of particular concern are highlighted in our report and arise principally from a handful of sections on the medical aspects of the bill. I will return to them later.
Returning to my shadow justice persona, I emphasise that if the Scottish National party had won on 6 May, we would all still have been here today debating essentially the same bill. We had a manifesto commitment to the introduction of an adults with incapacity bill and had also set our faces against including living wills in it. On SNP benches, therefore, there is support for the legislation, which I suspect extends to all parties. That is because of the clear need for reform.
In the welter of coverage of the controversial parts of the bill, the very real difficulties that people face right now have been overlooked. I hope that members have read the evidence highlighting some of those problems, by organisations such as ENABLE and the alliance for the promotion of the incapable adults bill. The large and increasing number of people who have had to deal with a member of their family who can be described as incapable—and I am in that position—will know that there is little choice between the existing power of attorney, which was not designed for those with incapacity, and the nuclear option of appointing a curator bonis.
I say nuclear option because the curator takes over the management of the whole estate, although the level of incapacity might mean that some money matters could be understood and handled by the individual. Nor does that system work when the incapacity is over the short term rather than the longer term. There are problems even when people think that they have sorted out their affairs through a joint account. A bank or a building society can, and often does, freeze the whole account when one of a couple becomes incapable. Just as bad is the situation that can occur when one person goes into hospital and the hospital takes over the management of their finances, effectively excluding their perhaps very long-term partner from further involvement.
Those are all actual examples of what can happen currently, and they make the need for the bill very apparent. The bill would allow a new form of welfare power of attorney, which would mean that medical and financial decisions could be delegated without having to do so on the once- and-for-all basis that is the case now. It would allow most of those functions to be carried out without the time-consuming and expensive process of going to court.
At present the position regarding who can decide what, when it comes to medical treatment of an incapable adult, is highly uncertain. Doctors can feel legally unprotected, even when they are making relatively minor and routine decisions about treatment. Alternatively, they have to delay necessary treatment until some kind of authority can be sought. The bill clarifies the legal justification for administering medical treatments that might otherwise be regarded as common assaults. We should not run away from the problem that doctors and nurses occasionally feel that they have to do something for which they could be prosecuted. The fact that they are not is a measure of the common sense of most people involved. However, that does not solve the problem that doctors and nurses are leaving themselves open, potentially, to prosecution in a situation in which most of us recognise that that should not happen.
For all the good that the bill does, we would be foolish not to recognise that it has other, more controversial aspects that have not been dealt with by the decision to remove the sections recognising advance directives or living wills that were contained in the Scottish Law Commission's original draft. When the bill was first announced, many people were relieved by the indication that those sections would not be included, because they felt that that meant that we would not become bogged down in the long-drawn-out arguments to
which the recognition of advance directives or living wills would have given rise.
However, lo and behold, we are having those arguments all the same. The exclusion of the sections that I mentioned was widely welcomed— as I indicated at the beginning of my speech, had the SNP been in government, we would also have excluded them—but there are still strongly expressed concerns that have not been alleviated. There is no doubt that much of the debate today and at stage 2 will centre on those concerns.
I cannot list them, but later speakers will no doubt pick on some of the issues that they feel need further clarification. Some of what the minister has said today and some of the concessions that he has already indicated will be made might help to address those concerns. However, we will have to await the response of the various organisations and individuals involved to see whether they feel that the amendments that are being trailed today go far enough.
One overarching concern has been what is meant precisely by the word "intervention" in section 1 of the bill. Witness after witness, including the bill team from the Scottish Executive, has assured Parliament, through the Justice and Home Affairs Committee, that intervention is meant to describe something that has happened— what might be termed an act of commission. However, others have equally strongly pointed out that, unless defined, an intervention could also be held to be an act of omission. That is what is giving rise to a great deal of the concern.
Perhaps it would be useful to provide a clear definition of the word "intervention" in the legislation. That would go a considerable way towards relieving the anxieties of those who feel that the end result of passing the bill will be decisions not to treat, rather than what it is being presented as—legal justification to treat. The ability to treat is important—I have already referred to the fact that, strictly speaking, doctors and nurses might at the moment be doing things that could technically be described as assault.
The dangers inherent in not treating are currently hugely controversial, as recent newspaper articles—not about the bill, but about practices that it is alleged take place throughout the national health service—highlight. Concern is being stoked up by that external controversy, which does not relate directly to the bill. If it is not the Executive's intention to permit the refusal of treatment, perhaps that should be more clearly spelled out than has been the case until now. It might be said that it is not necessary to do that when that is not what is meant, but one could equally argue that there is no reason not to do so, because it can do no harm to the overall intent of the bill.
Another issue that arises out evidence taken at stage 1 is the question of advance directives or living wills. The Executive took a decision to exclude them from the legislation, despite the fact that they were included in the Scottish Law Commission's original draft bill. I have already indicated that that would also have been the SNP's view, had we been in government. The Justice and Home Affairs Committee recognises the reasoning behind the decision and supports it.
The decision to exclude advance directives was widely welcomed as sensible, given that to include them would have risked the whole bill over that argument. The difficulty that I and, perhaps, some members of the Justice and Home Affairs Committee have is that, having heard the evidence of the British Medical Association, which was that the existence of an advance directive will have enormous weight when a decision about treatment is made, we began to wonder whether advance directives would be imported into the scenario in any case.
If one accepts that section 1(4)(a), to which the minister referred, is correct and that account has to be taken of
"the present and past wishes and feelings of the adult so far as they can be ascertained", it is difficult to imagine any clearer expression of those wishes than an advance directive— basically, that is what the BMA told us.
As a result of that recognition, the Royal College of Nursing has expressed concern that the bill will in practice result in enormous weight being attached to entirely unregulated living wills. That issue needs consideration. Perhaps the decision to exclude advance directives was taken in the clear knowledge that, in practice, they could not be excluded, and that there was no point in having a row about something that was inevitable. However, the concern of the RCN should at least be recognised. I do not have any specific suggestion as to how that could be done. I think that most of us do not want living wills to become part of statutory law, although perhaps they will become part of our law, willy-nilly. We have to think carefully about how we deal with that issue.
Please close.
A great deal of concern has also been expressed about the definition of "medical treatment" in the bill. In large part, that is linked to the definition of "intervention". The inclusion of
"ventilation, nutrition and hydration by artificial means"
in the definition of "medical treatment" has caused alarm, because the thought of proxy decision makers being empowered to refuse that aspect of treatment, thereby causing death, fuels concerns
about passive euthanasia. No matter what attempts are made to reassure those who are alarmed by that section of the bill, they have remained firmly of the view that it could well result in proxy decision makers being able to make decisions that will inevitably lead to death, with all that that implies. The requirement that an intervention be of benefit to the patient is interpreted by the critics as having no application to a refusal or failure to act. It seems to me that the absolute assurances that that will not be a result of the legislation have counted for so little thus far that we are in danger that that aspect of the debate will overshadow everything else.
I do not know whether the minister's announcements today will change that. If the intention of the drafters of the bill is that it does not authorise withdrawal of treatment, and that any such decision will still require resort to the courts, it may be that consideration should be given to spelling that out more explicitly in the legislation.
Will you close now, please?
The clock shows that I have 50 seconds left, Presiding Officer.
You are two minutes over.
We should recognise that many organisations feel that, whether it intends to or not, the bill will introduce euthanasia by the back door. Much of the evidence that was heard at stage 1 was directed at that problem. I admit that there are areas of that debate in which I am, as yet, undecided as to whether the alarm that is being expressed is justified.
Most of those issues will ultimately be addressed as matters of conscience. Certainly, when the specifics of the issues are debated, SNP members will have a free vote. Given the strength of feeling that exists, and assuming that there will be a free vote across the parties, I do not want the whole bill to be put at risk unnecessarily. I hope that the minister will go as far as he can to make the changes that would pacify the critics. The indications—I refer, obviously, to the proposals to amend sections 44 and 47—are that that is in his mind.
We all agree that the bill is necessary. I hope that we can get it through with a minimum of fuss—that will be a victory for us all.
I speak as the reporting member of the Health and Community Care Committee and as the deputy health spokesman for the Conservative party. When I welcome the changes that the Minister for
Justice has announced, I can do so only on behalf of my party—I would not like to speak for the committee on that. I am sure that the changes are very much to the point and have gone a long way to making my speech much shorter.
The Health and Community Care Committee has had a heavy work load recently, although discussion of our work on the Arbuthnott report is for another time and place. I was given the proposed bill on a Friday evening and asked to report on it by the following Wednesday morning after a visit to the Justice and Home Affairs Committee on the Tuesday. Although all members recognise the need for the bill and welcome it, that does not mean that we should be bounced into it. I apologise to any members of the Justice and Home Affairs Committee and the Health and Community Care Committee who might have felt that my report was not as robust as it could have been if more time had been available.
As someone who has found himself rather incapacitated on many a Saturday night, I welcome any measure that protects the rights and welfare of individuals with incapacity. On a more serious point, however, I know that people throughout Scotland will appreciate the steps that are being taken to ensure that adults with a variety of mental and learning difficulties will have their lives and affairs better managed.
The bill attempts to ensure that the wishes of adults with incapacity are observed while, at the same time, legislation is in place that will ensure that no advantage is taken of those people. In my report to the Health and Community Care Committee, I covered parts 1, 5 and 7 of the bill. Part 1 deals with general principles and definitions, part 5 ensures that those who are responsible for medical treatment are given the correct authority to treat the adult who is deemed incapable, and part 7 plugs many of the loopholes, concerns and limits of liability.
It is disappointing to note that, in comparison with similar legislation in other countries, the bill makes no attempt to recognise partial or temporary incapacity. Jim Wallace expects general practitioners to come to decisions in agreement with incapable adults and their carers, but the bill does not cover that. Other countries have gone some way towards realising that assisted decision making can be used in classifying someone as incapacitated. Many people can make sound and qualified decisions with assistance—indeed, the Liberal Democrats do it all the time.
Will the Minister for Justice assure me that when the Millan committee reports with its new definitions of mental health, he will review the position of the bill? If the definition of incapacity changes radically, the bill should be flexible
enough to reflect that difference.
I am happy to give the member that assurance.
Although we all agree with its aims, the proposed legislation throws up the ethical question of euthanasia. Despite the minister's assurances, there are parts of the bill that could allow unscrupulous individuals to apply some form of back-door euthanasia. I ask the minister to clarify the priorities in the bill. Part 1 lists the number of conditions that must be taken into account, but it does not say whether, for example, medical evidence should override previous wishes. The conditions are listed (a) to (d), rather than ranked in order of priority. Some classification of priority would be helpful.
The bill tries to balance a medical opinion with the opinion of a carer who may be ill informed. In 99 per cent of cases, the decision will be made jointly by carers and medical staff in the best interest of the adult with incapacity, but we must make plans for the exceptions. For example, a carer who is set to benefit financially may decide to override a doctor's decision, and there is no onus on that carer to seek informed medical advice. I note Jim Wallace's announcement that there will be an independent body to monitor people who have such a financial interest. His changes to section 47 have satisfied me that there will now be an onus on carers who may be the financial beneficiaries of the people for whom they care, and that medical advice will play a more prominent role in the carer's decision.
The Hippocratic oath binds doctors to a duty of care. The legislation lifts some of that responsibility from the doctor, but it does not transfer it to the carer. I am concerned that, coupled with the limited liability described in section 73, which the minister has now amended, that reduction in the duty of care could allow power without responsibility.
I am aware that this is stage 1 of the bill, so I have concerned myself only with protecting the aims of the legislation, on which we all agree, from the worst-case scenarios. However, the size of my mailbag confirms my view that there is genuine concern about back-door euthanasia. Although I am confident that the Executive does not intend to allow that, I urge it to take those concerns seriously. Better clarification of the priorities and a tightening up of the liability provisions would go a long way to ease those concerns.
I call Nora Radcliffe.
I did not expect to be called.
You are on the list to speak for the Liberal Democrats. Do you want to speak? If not, I can open the general debate.
I have not prepared a speech, but I will make some remarks, wearing my equal opportunities hat.
I welcome, in particular, the bill's emphasis on the rights of the individual and the fact that attempts have been made to treat the incapable adult—the person with incapacity—as an individual. I welcome the fact that the bill recognises different degrees of incapacity; that is fundamental. It is much to be welcomed that we are not considering an incapable adult as some sort of entity. The incapable adult is an individual—a person—and the bill goes to considerable lengths to ensure that they are treated as such and to ascertain, as far as possible, exactly what the individual wants.
I also welcome the bill's recognition of the rights of same-gender couples. Non-recognition of those rights was a discriminatory element of previous legislation that was to be deplored. I am extremely glad that the Executive has recognised that and that the bill will deal with it.
Contrary to expectation, we can probably fit in two general speeches before lunch. I call Richard Simpson, to be followed by Kay Ullrich.
The bill is to be welcomed—that is clear—but there are some problems with it. I am not sure whether the bill will last as long as the Curators Act 1585, which is the first act to be repealed by the new bill.
The change in the bill's title to "adults with incapacity"—from the original proposal of "incapable adults"—recognises that incapacity is not an absolute, for the individual with a learning disability, or for the individual with Alzheimer's. Incapacity may be temporary or permanent, it may be worsening, or it may vary according to the area in which the decisions are to be made. Much attention has been paid to the most severe situations, but the thresholds of incapacity are important and I am not convinced that the bill covers them adequately.
The rules on consent for treatment in relation to children, which have always been rather person- oriented in Scotland, have recently changed to allow consent to be given based on the ability to understand, without a specific age limit. It seems that the bill attempts to treat incapacity in a similar way, but that is not absolutely clear because of the
medical certification that has to be issued. Such certification has to deal in absolutes, rather than in thresholds.
Evidence from various organisations has indicated that people with learning disabilities at the most severe end of the scale will undoubtedly require the full capacity of the bill, but those at the lesser end will not. We are slightly hide-bound by the timing of the Millan commission; if it had reported first, we might have had new definitions, which would have made things much easier.
Will the minister, in summing up, advise what consideration was given to the inclusion in the bill of a concept of partial incapacity, assisted decision making, or advocacy? None of those terms appears in the bill, yet they are the new clinical issues at present.
On the matters that have caused the greatest difficulty—certainly, the Health and Community Care Committee has had problems with them—I will limit my remarks to three areas. First, the decisions are currently made by a team rather than by individuals, and it would be helpful to find a way of recognising that in the bill.
The second difficulty concerns the balance between the decision of the medical team and that of the proxy. I understand from the minister's speech that an amendment will be proposed on that, but—as the minister said—it is a matter of balance between the two decisions. It seems to me that the courts should be involved only in instances where disagreement is recognised between the two. There should be no primacy over who should go to court. I am not a lawyer. I do not know how that could be done. However, when it is recognised that decisions should be made jointly, if they are not and if there is a dispute, there should be an automatic reference to the courts, rather than one or other party having to go to court.
There has been much discussion about duty of care. I accept the evidence of Professor Sheila McLean to the Justice and Home Affairs Committee that we cannot impose a duty of care on proxies. That would be inappropriate. Nevertheless, there is inadequate reference in section 73 to the limit of liability of proxies, and it would be helpful to extend that limit in some way without going as far as a duty of care.
The issue of omissions as opposed to commissions of intervention has been dealt with. I understand that legally, interventions include intervening as well as not intervening. However, the issue of cessation of treatment has not been covered adequately.
On the matter of research, if I understand the minister's statement, the bill will be amended to take into account the European Convention on
Human Rights and Biomedicine. I welcome that, because the original text of the bill seemed to rule out the use of randomised controlled trials with placebos, and also defined the benefit to the individual as having to be "real and direct", which was a strict definition that would rule out genetic research that might produce a distant benefit.
The bill is to be welcomed. It will benefit a significant number of adults. However, the definitions in section 1, particularly those in relation to the wishes of the individual, are not sufficiently clear. I am not a lawyer, but if primacy is given to section 1(4)(a), which refers to
"the present and past wishes and feelings of the adult so far as they can be ascertained", the written statements that I was presented with as a general practitioner, and which many of my GP colleagues increasingly are being presented with, will be of considerable importance. It might be possible to address that issue in notes of guidance, but further clarification is required at stage 2.
As Roseanna Cunningham said, we made a commitment in our manifesto for the Scottish Parliament to support an incapable adults bill, with the proviso that the bill should not include legislation on advance statements. That was done for a simple reason: we did not wish the focus of the bill to be distorted by the inclusion of what, obviously, is a controversial issue. I was delighted in June when the First Minister stated that the bill would not include legal provisions for advance statements.
However, there are still concerns that the bill could lead to what some call back-door euthanasia, particularly because nutrition and hydration are defined in the bill as medical treatments. The concerns have not been lessened this week by claims in the press that food and drink have been withdrawn from elderly people in national health service care who were not terminally ill. In spite of the minister's concession today, which I welcome, that area will attract amendments at stage 2. My colleague Trish Marwick will expand on the issue later.
When the committee took evidence, concerns were expressed, particularly by the British Medical Association and the Scottish Neurosurgical Consultants Forum, that measures to help long- term incapacitated adults could inadvertently affect the emergency care of those with acute organic mental incapacity, for example, those admitted to hospital after bad road traffic accidents with severe head injuries. Decisions to treat in such cases often have to be taken at night and at
weekends, and often before relatives, proxies or guardians can be contacted. It is important to ensure that the measures in the bill for securing consent to treatment do not present an obstacle in emergencies. I hope that amendments at stage 2 will enable clarification of the necessity to treat in emergencies.
Section 48 is about authority for research. I welcome the minister's concession. As it currently stands, it would be illegal to conduct research for the benefit of other, and potential, sufferers rather than for the benefit of the adult with incapacity. I was impressed by the submission of Alzheimer Scotland. It pointed out that a great deal of non- therapeutic research is currently being carried out and that the cessation of such research could have serious consequences for future prevention and treatment.
For example, Alzheimer Scotland claims that, as it stands, the bill would outlaw the taking of blood samples, which could aid genetic research, and it would preclude all proper clinical trials of drug or other treatments. It also points out that many people with early dementia state that they would wish to give their consent to research being carried out at a later stage, even though they know that it is unlikely to be of direct benefit to them.
The Law Society of Scotland recognises those concerns and suggests that amendments could be made, as long as they involve minimal risk or discomfort to the patient and ensure that non- therapeutic research is subject to strict regulation.
In the short time allocated, I have highlighted a few of the health issues arising from the bill. The bill is not a political issue. I know that it has the support, in principle, of most—if not all—members of this Parliament.
I ask not only the minister but members to ensure that at stage 2 amendments are lodged to clarify and enhance the bill, and to give rights, status and protection to Scotland's 100,000 people with mental incapacity. The bill will also make life a great deal easier for their carers, as it should enable them to manage their loved one's finances and make welfare decisions on their behalf when they can no longer do so for themselves.
I am sorry, but the chair is in some slight confusion.
The debate will be resumed this afternoon.
I advise members who have indicated a wish to speak that I have noted their names. The screen will now be cleared, so those who wish to speak after question time should press their buttons again.